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Legal and Constitutional Affairs Legislation Committee
Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
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Legal and Constitutional Affairs Legislation Committee
CHAIR (Senator Ian Macdonald)
Singh, Sen Lisa
Xenophon, Sen Nick
Wright, Sen Penny
Boyce, Sen Sue
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Legal and Constitutional Affairs Legislation Committee
(Senate-Monday, 3 March 2014)
Content WindowLegal and Constitutional Affairs Legislation Committee - 03/03/2014 - Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
McLEAN, Ms Susan, Private capacity
RYAN, Ms Sonya, Director, Carly Ryan Foundation
Committee met at 09:02.
Evidence was taken via teleconference—
CHAIR ( Senator Ian Macdonald ): I declare open this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee for its inquiry into the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013. The committee's proceedings will follow the program. These are public proceedings being televised within Parliament House and broadcast live via the web, but the committee may agree to a request to have evidence heard in camera and may determine that certain evidence should be heard in camera. Witnesses should be aware that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to the committee. The committee prefers evidence to be given in public but, under the Senate resolutions, witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the ground upon which the objection is to be taken and the committee will determine whether or not it will insist upon an answer having regard to the ground which is claimed. If the committee determines to insist on an answer, the witness may request that the answer be given in camera.
I welcome everyone here. Our first witnesses are a panel from the Carly Ryan Foundation via teleconference. I understand Ms Sonya Ryan and Ms Susan McLean are with us. Do you wish to make an opening statement or say anything to the committee before you answer questions from the committee?
Ms Ryan : That would be wonderful. I am the director and founder of the Carly Ryan Foundation, which promotes internet safety and awareness around the country. We deliver internet safety presentations to schools and organisations. My daughter was the victim of an internet predator who used over 200 fake profiles to lure young girls online, misrepresenting his name, age and personal details to gain trust. My daughter was murdered in 2007, and as soon as the trial was completed I knew that there was a real problem online with this type of behaviour. I therefore incorporated the foundation in her name to try to prevent crime in the future.
CHAIR: Thanks, Ms Ryan. Ms McLean, would you like to make some sort of opening statement or in any way amend the submission that has been made?
Ms McLean : Thank you very much. I will just correct something. I am not from the Carly Ryan Foundation; I am appearing as an individual. In your opening remarks it appeared that you thought we were both from the same organisation. I am considered Australia's leading expert on the area of cybersafety for young people. I was a member of Victoria Police for 27 years and I took my first report of cyberbullying in February 1994. I was also the first Victorian police officer appointed to a position involving cybersafety and young people, and each year I deliver in excess of 300 presentations around the world in relation to online safety issues and young people. I am also a member of the National Centre Against Bullying cybersafety committee, and I am an adviser to the federal government on their cybersafety working group.
CHAIR: Thank you very much. We will go to questions.
Senator SINGH: Thank you, Ms Ryan and Ms McLean, for appearing before this committee and for your submissions. I have been learning about this particular bill and its history in a couple of guises, and through that process I have been understanding the plight that you have been through, Ms Ryan. I thank you for providing detail about what you have termed 'Carly's law'. I just want to ask you a little bit about the 2006 survey that you refer to. Obviously the figures in that survey were very alarming and staggering, but out of that you draw that you believe that there is a need for a minimum sentence of three years to be attached to this law.
Ms Ryan : Yes.
Senator SINGH: Can you just go into the reasons why you have come up with that clear statement about a minimum sentence.
Ms Ryan : We really feel that police need to be able to detain an individual, take DNA or seize technology before a child is actually traumatised. In a lot of the incidents that happen via these types of online meetings that we deal with as a foundation, the perpetrator will take some time to groom and manipulate a child before physically meeting. If we were able to pass this law, make it an offence and make it possible for a person to be arrested before the actual meeting with the child occurs, and we give that minimum of three years, I think that it could save other potential victims in the future, because often these predators will have more than one victim that they are trying to groom to meet. I think that we need to give more support to authorities to be able to detain an individual sooner. It is really quite vital to do what we can to implement this because, as we know, this generation is using online services every day, and unfortunately criminals are also using this service to groom and lure our children.
Senator SINGH: Does either of you know of other countries that have similar kinds of legislation in place or any other codes or anything of the kind in place?
Ms Ryan : I believe that New Zealand may have been looking at similar legislation. I would have to give you an answer on that on notice; I could provide that.
Ms McLean : My understanding is that New Zealand do not have that. They are talking about having some laws in relation to incitement to suicide through cyberbullying; that is the main change to their online laws. But I think we need to be aware that in Australia, under the Commonwealth Criminal Code Act section 474.26, we already have the offence of using a carriage service to procure a person under the age of 16 years, so grooming itself is a criminal offence. I think we need to separate this offence that we currently have from the proposed offence, which is simply misrepresenting your age online to a minor.
Senator XENOPHON: Ms McLean, at the moment, under the Criminal Code sections 474.26 and 474.27, in order to prove an offence you need to show a sexual purpose. Is that your understanding of the current law?
Ms McLean : Yes, it is. When we are talking about grooming, that is the course of conduct that a predator would engage in in order to gain the trust of the individual to move towards that offending behaviour of sharing the sexual images or meeting in person.
Senator XENOPHON: Can you just step back a bit, because I just want to contrast the current law and circumstances—and I will go to Ms Ryan in a moment about the circumstances involving her daughter. At the moment, under the Criminal Code, the prosecution needs to prove that there was a sexual purpose, in essence. Can you just walk us through what the elements of the offence are under the current laws, and then perhaps we will discuss what it does not cover in the context of what this bill is trying to achieve.
Ms McLean : I do not have the points of proof of the offence in front of me, but basically it covers the connection of the predator to the victim and it covers the course of conduct—the developing of the trust, the sharing of information and becoming a friend, so to speak. Of course, it has to be moving towards the sexual purpose—the purpose of meeting in the real world to engage in a sexual act. There have been, I think, a couple of prosecutions where it has been done on the sharing of sexual imagery rather than the meeting in real life, but you certainly have to prove that there is an intention to commit that sexual crime against a young person, whereas under the misrepresentation of age to a minor bill you do not have to have that grooming course of conduct. My understanding is that it will be simply be an offence to set up that fake account purporting to be someone you are not—that is, a young person—with the intent to connect with the young person to commit another crime. So you do not have to prove the sexual grooming. I see that as the main difference.
Senator XENOPHON: Given your experience as a police officer with Victoria Police for some 27 years, is it your view on the ground in a practical sense that having to prove that additional element can sometimes be difficult? If an adult is lying to a child aged 16 years or under and—I emphasise the word 'and'—attempts to meet that child, at the moment that is not an offence under the Criminal Code or, indeed, under state laws.
Ms McLean : No. If you are talking about the extremely high-level stuff, I think that laws are quite sufficient. We can always do better, but at the very high-end level the laws work quite well. But what you are saying is correct, and I think that anything—it does not matter what it is as long as it is well considered—that assists police and law enforcement in doing their job of preventing any of these sorts of crimes against children being committed must be commended. If we look at what laws are, historically they are designed to protect the public and provide suitable punishment, but society has changed somewhat since our laws were written, and I think we need to move more into contemporary law-making that reflects the situation many young people find themselves in. I would say, however, that education must be ramped up around these areas, because the bottom line is that, if kids did not talk online to people they did not know, they would not be victims.
Senator XENOPHON: I understand that, but at the moment law enforcement and prosecutorial authorities need to show a sexual intent—either the sharing of sexual images or a sexual purpose.
Ms McLean : Yes.
Senator XENOPHON: Right now, if an adult lies to a child aged 16 years or under about their age and they attempt to meet that child, that is not unlawful.
Ms McLean : No, because you have to be able to prove that course of conduct; that is right. So, if there is no evidence of months, weeks or days of the grooming process, that offence does not apply.
Senator XENOPHON: I have section 474.26 of the Criminal Code in front of me. It talks about where people 'transmit a communication to another person (the recipient)'—presumably we are talking about a minor here. It goes on:
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c) the recipient is … under 16 years …
Section 474.26 keeps referring to 'the intention of procuring the recipient to engage in sexual activity with another person'.
Ms McLean : Yes, you have to prove the intent.
Senator XENOPHON: Subsection (3) of that section again talks about 'procuring the recipient to engage in sexual activity'. So at the moment the main distinction in what is proposed in this bill is to remove the need to prove the intention of sexual activity and make it an offence to communicate with a minor while lying about your age and to attempt to meet them. In your experience as a police officer, do you think there were circumstances when the police could not act because it fell short of proving that element of sexual intent, even though an adult was—
Ms McLean : Yes, I do. Clearly there are deficiencies. Not every law is going to cover every single circumstance, and clearly what you have pointed out is a deficiency in law.
Senator XENOPHON: Ms Ryan, how many emails or other contacts does your foundation get from young people and parents each year? Can you give the committee an idea of how busy you are in terms of the communications you have on a yearly or monthly basis and the number of people who contact you seeking help.
Ms Ryan : There are many, many contacts via email and telephone. Last year alone, we were looking at over 200 contacts a month. Quite a few were from children who contacted our foundation wanting advice about inappropriate contact online because they were too afraid to talk to their parents or their peers about what was happening to them and did not know which way to turn. As Susan mentioned, education is a really important factor here. But the problem is that a predator will take quite a bit of time to groom a child, without showing any sexual intent—this is what we have found through the work that we are doing—and, by the time a child agrees to meet a predator face to face, he or she no longer thinks of that person as a stranger.
We are seeking to add this law to address the common denominator in the way that online predators behave. They all set up false online profiles and most reduce their age online to present as a peer to the child, with the intention to meet that child. The idea of this law is to prevent the sexual act happening to a child—therefore preventing the potential trauma to a child, which obviously can cause lifelong problems for a young person and all kinds of future problems.
As a foundation, we find it very difficult to keep up with the demand for the information. This generation is using social services online via so many different apps and online services. It is part of what they are now using to communicate. Young people are trusting and open, and unfortunately criminals use these good qualities to manipulate our young people online.
I do about 450 seminars a year. I am also an adviser to the federal parliament on the CWG regarding online safety for young people. As a mother, I was not prepared for the volume of outreach from the community for assistance, and that has been from parents, teachers, counsellors, teenagers and young people. I could not have imagined the volume of assistance required.
Senator XENOPHON: Ms McLean, going back to your experience as a police officer and dealing with these sort of matters, is it your view that some online predators are smarter in the sense that they will lie to a child but they will not make any sexual representations or mention anything that relates to a sexual act—they will try and meet that child so that they can have a face-to-face meeting? Do you think that the modus operandi of some of these predators has changed in order to avoid—
Ms McLean : I think they have always done that. Of course, the very clever ones do not go down the sexual path anywhere near initially in the communication because that often scares a child away. They continue with the friendship, if you like, for many, many, many months so that the child feels comfortable around them and has no inkling of any sexual sort of behaviour. Then, they often start to ask for pictures. They compliment the young person and tell them how hot they are et cetera. They often bombard the young person with sexual images to normalise the behaviour, so it is not seen as odd. They say, 'Here're a whole lot of pictures that my other friends have sent me, so why won't you?' It is all about normalising the behaviour for them. Of course, some do meet with a child initially with the intention in the back of their mind that there is going to be sexual contact down the track—the meeting is still part of the grooming process, with the intention being to gain trust. With the internet being more widespread, we often see a proportion of online sex predators who do not want to meet with children. They are actually happy with the exchange of images, the sharing of images on webcam.
They also sometimes develop a level of trust with young people which leads the young person to willingly share their passwords. Children have this belief that best friends share passwords—they do it in the real world; they are beginning to do it online. Of course, what they are doing is sharing their password with their new online best friend, who is the predator. That predator then gets access to the young person's account 24/7 and without a doubt can find something that they can use to blackmail them and then continue to try and extort sexual favours from them online because of the information they obtained.
It is a very, very different place probably in the last five to 10 years in the way a lot of these online predators are working. Interestingly, worldwide, the average age of an online sex predator is under 30, so they are not particularly very old, they have grown up with technology and they can talk the talk very well.
Senator XENOPHON: Thank you. Chair, I am conscious that my colleagues have questions, so if we have some time at the end I might ask a few more questions then.
CHAIR: Okay, we can come back to you. Ms McLean, how do you prove beyond a reasonable doubt that the purpose of lying about their age was to physically meet and that it was with the intention of committing an offence?
Ms McLean : Is this in relation to the new bill?
Ms McLean : Again, there is no case law or precedent because the law is not there yet. The way that these cases are investigated and prosecuted historically involved gathering the information—so you would be obtaining all the phone records, you would have copies of the text messages and the social media communications on Facebook, or wherever it was that this was happening—and you would go through that, basically like reading a listening device transcript, and then be able to form an opinion through the context and the content of the conversation as to what the aim of the communication was.
I suppose people can say, 'I am just a nice person that wants to talk to kids, perhaps I shouldn't be prosecuted for that.' But I think children have a right to be safe online. And I think that if we cannot trust adults to be honest and be truthful online then we do need legislation to help prevent that and to protect the primary vulnerable population. But it would all be done through the gathering of evidence—computer evidence, phone records—and through the process of warrants on the service providers.
Ms Ryan : I would agree with that.
CHAIR: No-one would disagree with the need to protect young people wherever they be, and being online is certainly a very major part of that these days. It would seem that the criminal would say: 'No, I wasn't reducing my age with the intention of encouraging a meeting or committing an offence. I just like talking to young people and thought I'd put myself in their age group to try and do that.' Proving an intention is a difficulty that, of course, the courts have dealt with for centuries, but how you prove that reducing the age was with the intention of committing an offence would sometimes seem to be a difficult policing matter.
Ms McLean : When you look at the points of proof of any offence, there have always offences that clearly have been committed but just pinpointing that final piece of evidence has always been difficult—but that does not mean that we do not have a process in place and the laws in place. In relation to this, I think it adds another layer to the ability of law enforcement to protect children. If you read the large amount of online transcripts that I get to read, still often on a daily basis, it becomes very clear from the communication what the intention of the person was.
CHAIR: Thank you very much for that. I will pass to Senator Penny Wright.
Senator WRIGHT: Ms Ryan and Ms McLean, thank you for your time. I have three young adults in my life and I am pretty much aware of what happens on the internet, I think, because of that experience. Ms Ryan, I admire your courage and your tenacity and what you have been doing, being prepared to work so hard on this issue. Although I understand you to be saying, Ms Ryan, that essentially you would be seeking a mandatory minimum of three years if this offence were made out, I think that is not what this bill proposes—is it, Senator Xenophon?
Senator XENOPHON: No, there is no mandatory minimum.
Senator WRIGHT: I have to say quite clearly on the record that I have real concerns about mandatory sentencing because I have previously been a legal decision maker myself on tribunals and I know that, for all the amazing generalisations we can make and the mass of evidence there can be, there are always circumstances and unintended consequences that the legislature just cannot provide for. It is really important in my view that the person making the ultimate decision about what is an appropriate penalty or sentence has the ability to respond to the actual circumstances and facts. They are often the only person who is fully aware of those facts.
That said, in a sense I echo the chair's concerns, although perhaps slightly differently. I am concerned about the fact that there may be someone who meets the conditions of this offence who may be wanting to misrepresent their age for the purposes of meeting, but then the further implicit assumption is that they are wanting to do that for sexual reasons or to exploit the person. I am concerned that there may be, even though it may only occur infrequently, people who are not doing it for that reason. I am thinking about people who may have an intellectual disability, people who may have some kind of condition that affects their cognitive ability to understand fully the consequences of what they are doing. They may just be extremely lonely people whose thinking is at the level of a child or a younger person who are wanting to meet for those reasons. I want to understand how a potential injustice could be overturned with this legislation, if that is the reason they are meeting and it is not for sexual reasons or for exploitation. My experience has been on the guardianship board and I have come across people who perhaps think in that way. Can either of you talk to that?
Ms Ryan : I have never witnessed a legitimate reason for anybody establishing a false profile using a fake name or age. To me, there would not be a legitimate reason for any adult to need to lower their age and provide a fake name or fake information to make contact. This is something that maybe Senator Xenophon would need to answer. But if someone had a mental illness or a disability, that would need to be looked at in course of prosecution. There is always going to be what if this, what if that or what if somebody comes through who felt that they had a legitimate reason to lower the age or create a fake identity to contact a minor. Personally, I do not see a legitimate reason for any adult to establish false information to contact a minor, a person under the age of 16.
Senator WRIGHT: I would like to hear Ms McLean's views as well because you have experience too. Before we get to that, I guess I am not talking about whether someone has a legitimate reason to misrepresent their age or not. I am looking at the circumstances of the person who is actually carrying out the elements that would constitute the offence. From their point of view, they may not even consider whether they have a legitimate reason. If someone is of diminished intellectual capacity, is acting under some aspect of delusional thinking or is just driven by loneliness and perhaps wants to meet people that they feel they are more able to associate with than adults but, again, there is not necessarily any intention at all to hurt or sexually offend against the young person, I am interested to know how someone in that situation—where I think we would probably agree that it would not be appropriate to give them some kind of sentence—would be protected. I am not convinced that that would be appropriate for a prosecuting authority to consider, and I would be interested to hear from Senator Xenophon as to his views about this. It may not happen very often, but we do not want to have people subject to this who we would all probably agree are not predators. We do not want to just punish people for lying. It is more than that; it is the intention to hurt a young person that we are seeking to prevent. So how do we avoid that possibility? Ms McLean, I do not know if you have ever come across in your work a situation where you may have someone who has perhaps misled or contacted young people not for the particular reason that they want to exploit them but because they are essentially quite lonely.
Ms McLean : Thank you very much for the opportunity to answer that. Yes, that is absolutely correct. I think that the initial research paper that I presented to Victoria Police was in relation to the issues of online safety of young people and adults with an intellectual disability, because they need to be brought into this argument. I agree wholeheartedly with you that there are many people with an intellectual disability—those on the autism spectrum or particularly lonely young people who have a mental impairment—who do not have the ability to form an intention or knowledge that what they are doing is wrong. They want to have a friend—any friend. They want to connect with someone who is similar to them. While their physical age might be 25, they may be working on the capacity of an eight-year-old. So those are absolutely the people we do not want to get caught up in this law. That is why, although in many cases we do not need discretion and we do not want loopholes that predators can sneak through, I think that having judicial discretion is vital. As you said quite rightly, it is the judge or the magistrate who is presented with all the facts. I am not saying that adults with an intellectual disability cannot commit a crime, because they can, and I have charged those people as well. Often they engage in overtly sexual behaviour because they do not have the ability to process this as not appropriate in this time and space. But I think we should allow the judge or the magistrate to have that ability. We do not want loopholes for the normal, able-bodied, able-minded predator, but I think we do have to protect those with an intellectual disability who do not even know that what they are doing is wrong, because they do not have that capacity.
Senator SINGH: The question to follow up from that is: does this bill do that? Does it protect people with intellectual disabilities?
Senator BOYCE: No bill does.
Ms McLean : There are the defences to the charges, for which there is nothing in my notes about intellectual disability. I think that you would find that, if there is no mandatory sentence if found guilty, the implied judicial discretion would be there. It may be worth considering impaired intellectual capacity as one of the defences, because it needs to be considered. One in five people in Australia suffers from some form of mental illness. We do not want to further criminalise that inadvertently.
Senator WRIGHT: I understand why the bill has been drafted in this way, but the difficulty I have is that it is essentially a strict liability offence in the sense that the only aspect that has to be proved is that the misrepresentation of the age is for the purpose of encouraging the person to meet physically with the sender. If we are leaving aside sexual interest, that is where you could potentially catch people who are lonely and want to meet someone for a coffee or to be friends. If the strict liability is made out then the offence, it seems to me, is made out. There is no defence for someone on that basis. If they indeed wanted to meet and that is why they misled then the offence is made out. I just have to say that that is my concern.
In my experience, as I said, on the guardianship board, I have seen a lot of people who have behaved in ways that have not even been in their own interests in terms of meeting people online. Those were people with diminished cognitive abilities or mental illnesses. They might have been intent on meeting someone in Russia because they felt that they were in love that person, or they might have sent money to that person. I have seen the way people can get caught up in thinking that is not helpful to them. In this case, it might be just that they want to meet with young people, without any intention of hurting them. I cannot see the protections here, apart from, potentially, some judicial discretion. But if the offence is made out, it is made out. I am not sure what the discretion could be that a judge or a magistrate could exercise in this way.
CHAIR: I might allow Senator Xenophon to ask a question that might clarify some of those issues. But, first of all, do either of the witnesses want to comment?
Ms McLean : I would just say that if there is no minimum penalty provided with the legislation then the judicial discretion would be there for a judge or magistrate to take into account all the findings of the case, and, of course, apply those parameters if we were dealing with someone with diminished cognitive development. The problem is if there is a mandatory 'you must get that', that becomes very difficult. Whilst I absolutely support the bill and adding another layer of ability for law enforcement to target some of these creeps online, I would not be going down the path of supporting minimum sentencing because I would not like to see people criminalised for an action that was not criminal, as in the case that was raised.
Ms Ryan : I certainly would not want to see anybody with a mental illness or disability being detained, depending on the circumstances, of course; we do need to consider all of these things. That is why these discussions are vital and so good. Ultimately, we need to be able to protect a child under the age of 16 from any person contacting them using false information. I, not only as a mother but also as a person who runs a foundation, find it quite difficult to understand why it would be necessary for anybody to lower their age or give false details to contact, essentially, a child—and we see it a lot with adult behaviours online. There are so many different cases and so many different circumstances that, yes, we would need to look at the circumstances and make some exceptions. Senator Xenophon would really need to expand on that.
Senator XENOPHON: Further to the line of questioning of Senator Wright and Senator Singh, my understanding is that there is already a mental impairment defence under the Commonwealth Criminal Code and under the various state criminal codes that would deal with issues of diminished responsibility. I would like to go back to the elements of the offence where there is judicial discretion. Take the scenario of a person lying about their age online for the purpose of meeting a child 16 years or under. Even if that person had no prurient intent, no intent to cause sexual harm, or other harm to that child, would it be fair to say—from both of your experiences—that the child could be psychologically harmed by virtue of the fact that they were lied to and a meeting was arranged with a person who lied to them about their age and identity?
Ms McLean : Certainly a young person could suffer a harm in relation to that. Betrayal is an awful emotion to feel, and young people, sadly, get to feel that a fair bit in relation to what happens online. As you know, Senator Xenophon, I support this totally. I just do not want the wrong people to be caught up in it. Certainly, I think that the harm associated with being lied to online is much less than some of the other harms. It does not mean that it should happen, but I think a lot of these young people—certainly the ones who I have dealt with and who have a significant level of mental impairment—do not even see this as lying. They do not even have that ability. They just will hang out somewhere where kids hang out, and that, really, is all there is to it. If you take Facebook, for example, I can set up a Facebook account and call myself whatever I want. I can put in a fake age, but I do not even have to show that fake age. I could be communicating with someone and I could just go, 'Hey, I'm 13,' or, 'Hey, I'm 17,' and there is not even a thing on the screen to say that this person is lying or telling the truth. You can actually go to great lengths to hide that identity part of it.
As long as there is the discretion there for the learned magistrates and judges to make those decisions when the time comes, what Sonya said about how she does not understand why anyone would do that is not a formed opinion. These people do not have the ability to form that opinion. That is part of their illness. As the senator who has been on the Guardianship Board would be aware, people are vulnerable and people are lonely, and they do things without any intention whatsoever, because they do not have the ability to form intent.
Senator XENOPHON: I understand. Further to that, given that there is a mental impairment defence under the Commonwealth criminal code, that there is judicial discretion and that there is, under general sentencing guidelines, an ability to find no conviction recorded on the basis that it was a trifling, or trivial, matter, as a former serving police officer, Ms McLean, is it your understanding that, even under current sentencing guidelines and the mental impairment defence, there are a number of safeguards built in?
Ms McLean : Yes, there are, and that is the important thing to be noted in conjunction with the amendment to the Commonwealth Criminal Code Act—that they would still apply.
CHAIR: Does anyone else have any questions at this stage?
Senator WRIGHT: I might indicate to Senator Xenophon that I have just asked the secretary to look at how the mental impairment defence would work. I guess my continuing concern is that, even if there is a judicial discretion about sentencing, someone could end up with a criminal conviction, on the basis of this provision, which is with them for life even if they had no intention to cause any harm to the person whom they misled about their age. That would potentially be beyond the scope of a magistrate or a judge to alleviate. If the elements are made out, there will be an offence. And I am not sure that that is the intention—to give somebody a conviction bigger than the offence you are intending to protect against. So I have asked the secretary to look at that.
Senator XENOPHON: Sure.
Senator SINGH: I think this goes back to the breadth of the bill. I do not know, Ms McLean or Ms Ryan, if you have read any of the other submissions that do touch on this, in the sense that, potentially, the bill is too broad in its application. I think that is where some of the concerns that are being raised by Senator Wright and me come from in the sense that it captures individuals whom there was no intent to capture in the first place. The way that the bill is currently drafted is that, obviously, it seeks to amend the Criminal Code Act 1995 to make it an offence for a person who is over 18 years of age to misrepresent their age online to 'a person they reasonably believe to be under 16 years of age for the purposes of encouraging a physical meeting'. Obviously, 'physical meeting' does not articulate if it is a sexual meeting or the criminal—
Senator XENOPHON: No, it is just a meeting.
Senator SINGH: intent of that— the intent of committing an offence. That addition makes it a bit clearer, but the way it is currently drafted it is either/or. Do you have any comment about the way it is currently drafted? Could a bill hone in on the potential criminals that your submissions outline if the wording of the bill is narrowed to ensure it is about them and not about other individuals who could be innocently, I suppose, captured by this bill?
Ms McLean : I think the problem with making it superspecific, with so many things to think about, is that it is going to end up being an amendment to the grooming legislation rather than something separate. I think that can be a problem in that we are trying not to make it as prescriptive as the grooming bill. It is to stop the behaviour before it gets to that full-on grooming process, so it does have to have a wide catchment, if you like, in order to do that, because that is one of the problems with the grooming legislation; it is much tighter. But, again, the argument for making sure that those who were not reasonably expected to be caught up in it are not caught up in it is of course very important as well.
Ms Ryan : I would agree with that. It would be unfortunate for people with mental illness who are not able to even realise that they are doing anything wrong to be caught up in that, although I think it is important to remember the victim here as well—to understand that, whether a person's intention is criminal or somebody is contacting a minor with false details with the intent to meet them, when that victim or that child finds out that the person is in fact not who they said they were and is an entirely different individual, the damage that this causes to a child is quite significant. At the very least, people should be held accountable for that kind of behaviour online, that deceitful behaviour online, which can cause quite extensive damage to a young person's life, especially when they are at that very vulnerable age of wanting to be accepted and wanting to fit in with their peers. It is a very delicate age, and we are seeing quite a number of young people being really quite affected by this kind of behaviour by individuals using this technology to create false information and fake details to begin that kind of friendship via these various different services.
CHAIR: I think we might have to move on. We have other witnesses waiting. Ms Ryan and Ms McLean, thank you very much for being with us via teleconference today. We very much appreciate your contributions.
Ms Ryan : Thank you for having me.
Ms McLean : Thank you.